August 24, 2013

"... it's considered completely inappropriate for the authorities or people who aren't intimate with the person to pressure him about whether there really is a God and whether that God cares about who's wearing hats."

The last sentence of my long comment at the end of the thread on the post "Not much is getting said about the Chelsea/Bradley Manning transgender announcement."

So, if a majority of people say "We believe that everyone in our society should ware hats", is it considered completely inappropriate for the authorities or courts to strike down the majority will, merely because the authorities and courts unilaterally conclude that the majority could only get their hat wearing beliefs from a God, when the majority has said nothing in the public square about a God, merely that they belief hats are good?

Your analogy is too easy-breezy to fit. If instead, the person felt compelled to have his body mutilated, or his/ her child's, and society was confronted with the dilemma of allowing physicians to take part or not, it would be a better analogy.

I agreed with St.Croix's comment on that other thread, because aside from all of the ethical issues of surgery, there is also the idea that society may have a genuine interest in promoting the acceptance of biological realities and defining extreme deviance from them as pathology rather than attempting to artificially change reality. It's a bit like extreme plastic surgery, really- does anyone think that Michael Jackson's surgical tranformations served his psyche well?

Generally speaking, hat wearing doesn't create any major social friction, but when a man insists on using the woman's restroom, it does. So when some man says that he feels that he's really a woman, who cares? (His family and friends do, but not the public.) But when he insists on intruding himself into female-only places, then people do care. In the case of Bradley Manning, who's going to be in prison, his claim to be female when he's not will create social friction in the prison, which the authorities would reasonably want to avoid. This is all true even if he weren't trying to get the government to pay for his "treatments".

"Good analogy, but why does it become a legal right for "believers" to get totally free hats? The hat making industry may appreciate it. But is that enough?"

Read the full comment at the link. I account for that.

This is a starting point for the discussion, so I don't accept the criticism that I haven't solved all the legal issues that arise down the line.

I'm trying to locate the issue in the realm of freedom of conscience.

The freedom of religion cases encounter the same sort of problems. Obviously, we're oriented to accommodate, but we don't accommodate everything (e.g., human sacrifice). These issues are well-developed in the free exercise of religion cases (and I teach a law school course of this subject).

It is interesting that you mention both authorities and persons not intimate to the individual in question. These are two distinct issues, no? Whether or not it is appropriate for authorities to take a position, and whether or not it is appropriate for other individuals in society to take a position or try to persuade the individual in some way.

Authorities are necessarily involved to the extent that the law already regulates the practice of medicine, and speaks to who pays for medical procedures. Any discussion of acceptance of transgenderism has to acknowledge that medical procedures are going to be sought by many who feel at odds with their biological gender.

These are good points about the boundaries of conscience and belief and the meaning of "is". It still seems nettlesome to me though.

What if Manning believes it is a medical issue and not a belief of conscience, i.e., akin to a medical disability that we do need to determine the validity of and not similar enough to a religious belief for the analogy to be apt? And that the treatment of the medical issue ("really" being a woman trapped in the body of a man) deserves medical treatment paid for by the taxpayer, like a prisoner receiving medication for the treatment of a neurological disorder? The paying for is related to the "is" or at least "has". We pay for medical disorders we believe prisoners really "have".

On a burning issue relevant to religious beliefs, must society accommodate Ben Affleck's belief that he can play Batman?

Ann I'm not sure what is the point you are trying to convey about Manning. He is a convicted criminal and as such has had his civil rights severely curtailed. While the Army has an obligation to feed, house and provide him with acute medical care his issues are beyond the Army's scope of obligation. As a practical matter he is going to be confined to a jail cell for nearly twenty four hours a day for the next thirty or years so his gender issues and how it affects his psyche and his relationship with others is immaterial. He/she can deal with that issue in 2043 when he/she is released.

I like Freeman Hunt's comment (8/24/13, 1:15 PM) on that other thread:

I am allowed to pretend whatever I'd like about myself. There is no requirement, however, that anyone else pretend along with me.

So, if I think I have to wear a hat, I can. I can't expect everyone else to wear hats though or expect them to agree that hat-wearing is a religious requirement. I can only expect them to leave my own hat alone. That's tolerance.